Nashville Criminal Law Report : Nashville DUI Lawyer & Attorney : Rob McKinney Law Firm : TN Criminal Defense, Domestic Violence : Cheatham, Davidson, Montgomery Counties

A Nashville , Tennessee magistrate denied arrest warrants that charged Occupy Nashville protesters were trespassing.

 Tennessee Highway Patrol Officers enforced a last minute trespassing ban at Legislative Plaza this past weekend. Protesters were charged with trespassing and hauled off to visit with the magistrate. After hearing some proof and considering the law , the magistrate denied the arrest warrants and set the protesters free.  The separation of powers was on display. The judiciary upheld the integrity of the law and kept the executive branch from exercising their will on the people. I applaud the actions of the court in enforcing the rule of law. Some magistrates would merely act as a rubber stamp and condone this offensive action by whoever that ordered the arrests.

The teaching point that is important is the role of a magistrate in Tennessee criminal law cases. Rule 5 of the Tennessee Rules of Criminal Procedure provides that a person under arrest shall be taken without unnecessary delay to a magistrate. The magistrate usually makes a finding of probable cause to issue the warrant.

Other duties of the magistrate included ;

• Setting bond.
• Advising the defendant of their constitutional rights.
• Setting the preliminary examination.

In the occupy Nashville case , the magistrate held that the State of Tennessee did not have the power to authorize a curfew . Nashville Scene reporter Jonathon Meador was arrested and ultimately tweeted his release from jail.

Here is my two cents . First , I guess the right to assembly granted to us in the Constitution does not apply to the Legislative Plaza. Second , the rule of law was enforced by that great thing called the separation of powers. I wonder if Governor Haslam checked his orders out with the Attorney General.

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North Carolina divorce lawyer Lee Rosen wrote a post on should a mother attend the first consultation in a divorce case. I thought the post was worth commenting on from a criminal lawyer's perspective. I represent a lot of Vanderbilt students  as well as those from other local colleges here in Nashville. Most parents want to be involved in the process. As a parent myself , I understand that need to know what is going on with the criminal case for your child. However , when a third-party is in the conference room it breaks the attorney client privilege. So , any communication between the client and the criminal defense attorney is no longer privileged. It comes to be important later at a bond hearing or if the parent is a witness at a later hearing..

What should a criminal defense lawyer do ? First , explain to the parents about the attorney-client privilege. Second , Meet with the parents and give a general overview of the criminal process. Third , excuse the parents while you get the facts about the case . One benefit is your client may really tell you what happened rather than sugarcoat it for their parents. finally , bring the parents back in to discuss the defenses , strategies , and where you go next.

Thanks to Lee Rosen for the idea for today's post.

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A Nashville , Tn. couple was arrested this week on charges of manufacturing marijuana and possession of marijuana within a 1000 feet of a school zone. Metro Nashville Police discovered a large marijuana growing operation this week. A police officer noticed the smell during a DUI traffic stop. The smell was traced to a house in East Nashville. Police knocked on the door. No answer. Then , the police got a search warrant.  Bingo. Marijuana , grow  lights and all sorts of growing tools were discovered.There are two points that make this case worthy of comment.

First , the issue is whether the smell of marijuana alone justifies the issuance of a search warrant.  The California Court of appeals addressed this very issue this week. The court held ;

"Was the warrantless search justified based on smell alone?" wrote Presiding Justice Arthur Gilbert of the Second District Court of Appeal in Ventura. "Not according to the California Supreme Court. To smell it is not the same as to see it."

It will be interesting to see how this case plays out . From , my reading of The Tennessean article by Andy Humbles and Nicole Young , it appears there was no other evidence to issue the search warrant other than the smell. If there is nothing else , I predict the search warrant may be invalid.

Secondly , does a citizen have to answer the door if police knock ? No. A citizen has no duty to open the door for the police absent a search warrant or arrest warrant. One of the most popular police tactics is the " Knock and Talk ". Police knock on the door. Ask to come in and then they look around or ask for consent to search. Just like a door to door salesman , you do not legally  have to answer or let them in.

One question I have is how far was the house from the DUI stop.

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I watched a portion of a trial today while I was waiting for my case to be called in the Birch Building. I have a case next week withe the same prosecutor and just wanted to watch. One evidence issue came to mind during the trial which sparked a thought. Normally , when a video tape is introduced at trial, the district attorney's office provides a transcript. The stated purpose is to assist the jury. The court gives a curative instruction that the video is evidence not the transcript. During a trial , I never watched the judge or jury during the video. I am concentrating on the video.Funny things happen when you watch.

Even though the judge told them the video was the evidence not the transcript , something happened . The jurors did not watch the video statements at all. They focused in on the transcript. The judge went to the transcript. The demeanor of the detectives and the witness was ignored.

Rule 1001 of the Tennessee Rules of Evidence provides ;

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress or the Tennessee Legislature

From watching the trial today , it appears the transcripts outweigh what is on the evidence. The transcript trumps the video. Now i know why the district attorney provides the transcript.

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The Buffalo River runs though Wayne County . It makes a great rip to float down the river on a hot sunny day . However , big brother might be watching your fun.

I just got back from the Wayne County General sessions court in Waynesboro , Tn.  A new police technique was discovered . It appears that members of the local drug task force set up observation posts during the summer . They look like duck blinds . As folks float down the river , they are on the look out for drunk boaters and for people that may be smoking a little weed. Once they see them , the investigation starts.  It seems that all the canoe outfitters like my personal favorite Crazy Horse knows of the police tactics and tell the folks the drug task force is on the river. The lesson is don't have the 4290 on the river. Remember simple possession of marijuana in Tennessee is a Class A misdemeanor that carries jail time , probation , and a mandatory minimum fine of $250.00

Imagine what those police officers would do if they set up shop at Bonnaroo.

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A Gallatin , Tennessee band teacher was charged with statutory rape by an authority figure .  From news reports , a female teacher had sexual relations over 20 times with a student . The case is set for hearing in the General Sessions Court of Sumner County , Tennessee in December. There are two points about the case worth discussing.

Under Tennessee criminal law , the punishment for statutory rape is increased if the defendant was in a position of authority over the alleged victim.Here is the definition of what is an authority figure in Tennessee;

     (3)  The defendant was, at the time of the offense, in a position of trust, or had supervisory or disciplinary power over the victim by virtue of the defendant's legal, professional, or occupational status and used the position of trust or power to accomplish the sexual penetration; or

     (4)  The defendant had, at the time of the offense, parental or custodial authority over the victim and used the authority to accomplish the sexual penetration.

Clearly , a teacher is in a position of authority over a student. However ,  when can a charge be brought under this criminal law ? Sometimes , there have been charges of statutory rape of an authority figure without any basis. There must be some special relationship for this charge to be brought. I would submit this charge can't be brought when one is merely a social guest in a person's home. A analysis must be made in defending these cases if this charge should be brought. Why would a defendant be overcharged by the government ? It brings more punishment and force a plea bargain agreement.

The second point is the use of a police technique  in this case. Gallatin police Sgt. Chris Shockley set a reverse telephone call between the defendant and the alleged victim. . A reverse telephone call is a police tactic to have a person call the suspect to gain an admission or a confession that something occurred. The telephone call was recorded and it will be admissible into evidence. Most police departments look for some type of corroboration of the crime to make the case stronger.

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Jeff Woods of the Nashville Scene broke the story of Curry Todd's DUI arrest in Nashville. Mr. Curry was the moving force behind the controversial bill to allow guns in bars . During the DUI investigation , a handgun was found. You can review his warrants here . Mr. Todd was charged with driving under the influence of alcohol , possession of a handgun under the influence of alcohol , and a violation of the implied consent law. Mr. Curry did not want to take a breath alcohol test after the police officer requested Mr. Curry to submit to the test.

There area a couple of points here. Don't carry a pistol in a holster while you are under the influence of alcohol . It makes matters worse. Your booking photo can be used as evidence. judging from his booking photo his eyes are almost closed.  One thing that is critical in his defense is the traffic stop. It would be interesting to note why Mr. Todd was stopped by the police. The arrest warrant merely indicates he was stopped for a traffic violation. It does not articulate the precise reason. One of the best defenses to any driving under the influence case is whether the traffic stop was valid.

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Scot Greenfield commented on a New York judge incarcerating a young man until his baggy pants were pulled up over his boxers. I must agree with Mr. Greenfield in that my personal style does not include baggy pants. However , it does with my son. I have no idea why it is fashionable. Personally , I don't care what people wear in their day to day life. For me , I enjoy seeing some of the clothes that people wear from hipsters to urban clothes. A court appearance is a different matter because you are being judged by a District Attorney , a Judge , and sometimes a jury.

Most courts in Nashville have some type of dress code. No baggy pants , shorts , or revealing tops is the standard. Dressing for success still counts when you go to court facing a criminal charge. It can make a difference and I have seen it time and time again make a difference in plea bargaining discussions. Unfair as it may seem , a book is still judged by it's cover.

I would suggest the following ;

1. Men should wear a long sleeve shirt and pants. Coat and and tie if you want to and feel comfortable wearing it.
2. For women , slacks and blouse is fine. Feel free to dress up more if you want .
3. Use common sense. Wear what you wear to church , a wedding , or a funeral.

When your at the club or a concert wear whatever. In court , dress thinking about what kind of result you want in court. Put your best foot forward.

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A babysitter in Clarksville , Tn. was arrested on child abuse this week . The allegation is that one of the children she was watching wandered off from her care. . From the news report , it does not appear to be any intentional act of abuse , but merely neglect.  It was reported that the babysitter thought the boy was outside playing and did not check on him for over an hour. Is this a criminal offense ?

Under Tennessee criminal law , punishment is different based upon the age of the child . In this case , the child was 7. The government must prove that the babysitter " knowingly " abuses the child under 18 years of age in such a manner as to inflict injury commits a Class A misdemeanor . However if the abused child is eight (8) years of age or less , the penalty is a Class D felony. A lessor charge of child abuse exists where a person knowingly abuses or neglects a child as to adversely affect the child's health or welfare. The key point the government has to prove is did the defendant know what he or she is doing.

So , the first analysis in this case or any other child abuse case in Tennessee is to assess whether the conduct was accidental . Second , was the child injured. In this case , no injuries were mentioned in the report. What was the conduct ? Accident or an intentional act. Is the mother who lets her kids play outside guilty of child abuse if they get hit by a car playing a game ?

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I must admit I don't follow high publicity criminal trials.Once you walk in the trenches of the criminal justice system , you don't want to spend your free time following another case.In 2011 , there are been two high profile criminal trials with different outcomes. First , the Casey Anthony case which almost caused Nancy Grace's head to explode . Second , Amanda Knox's verdict was shown on The Today show this morning where she received a welcome celebration. Why the difference ?Both were accused of murder.

Casey Anthony was accused of murdering her own child then concealing her death. Any criminal charge where a child is the victim of sex abuse , child abuse , or  murder , the case is treated differently. A jury wants to protect children. So , the presumption of innocence does not exist in the real world . Strike one against Ms. Anthony. Secondly,  Ms. Anthony was far from sympathetic . Stories of parties and her lifestyle disturbed the general public. Casey Anthony was cast by the media as a monster. However , the jury heard the evidence and found her not guilty. The American system of justice prevails .

Contrast the Anthony verdict with that of Amanda Knox. Ms. Knox was convicted at her first trial. Honestly , I don't understand the Italian criminal justice system. Knox was convicted but an appeal court heard new evidence. Ms Knox's fate would have been entirely different under American law. It was shown at the appeal that the DNA evidence was highly suspect. Also , Ms. Knox was convicted by a foreign court and most Americans didn't trust the outcome. Ms. Knox's defense organized a effective public relations campaign. Later , Ms. Knox was acquitted.

Both charged with murder. One is despicable. One is a returning heroine. It is not always about the facts , but the public perception of the reality. Is there unequal justice in the two cases ?

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Brian Haas of The Tennessean reported that only Washington D.C. has a higher rate of gun violence. Those in Tennessee were more likely to be victims of violent gun crime than any other state in the nation. Tennessee leads the nation  at which its citizens are the victims of aggravated assault and fifth highest among robbery cases. No one seems to have the answer to this critical question.

There were three possible answers to the question but one commentator suggested Tennessee's high rate of gun ownership. Also , Tennesseans are free to have a handgun permit and there is always a move in the Tennessee Sate Legislature to expand the list where folks can take a hand gun. Heck , Tennessee even has a law that the police can sell back the guns they confiscate instead of destroying them.

Aggravated assault under Tennessee law is found at T.c.A. 39-13-102.Basically it consists of ;

1. The defendant intentionally or knowingly caused bodily injury to another.
2. The defendant caused serious bodily injury or ;
3. That the defendant used or displayed a deadly weapon.

A deadly weapon does not have to be exclusively a hand gun.

Tennessee had over 13,132 gun-related crimes in 2010.Hard choices need to be made . Do we decrease the amount of guns on the street of send people to jail for aggravated assault convictions ?

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One way to avoid being stopped in Nashville for either a DUI offense or a drug offense is to remove the window tint on your car.  Metro Nashville Police can stop a car or truck for a  traffic violation. The window tint under Tennessee Code Annotated 55-9-107 provides that it must have a visible light transmittance of less than 35 %. So buy sunglasses and remove the window tint. a violation of Tennessee's window tint law gives the police the right to stop your car.

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